Ryan v. City of Emmetsburg, 45799.
| Decision Date | 16 June 1942 |
| Docket Number | No. 45799.,45799. |
| Parties | RYAN v. CITY OF EMMETSBURG. |
| Court | Iowa Supreme Court |
RYAN
v.
CITY OF EMMETSBURG.
No. 45799.
Supreme Court of Iowa.
June 16, 1942.
Appeal from District Court, Palo Alto County; G. W. Stillman, Judge.
Action at law for damages from nuisance. From judgment for plaintiff, defendant appeals. Opinion states the facts.
Reversed and remanded.
See, also, 228 Iowa 678, 293 N.W. 29.
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E. F. Nefstead and Edward D. Kelly, both of Emmetsburg, for appellant.
D. M. Kelleher and Horace J. Melton, both of Fort Dodge, for appellee.
OLIVER, Justice.
This is an action at law to recover for damages to the use and enjoyment of real estate, from an alleged nuisance. Plaintiff, Albert Ryan, had for many years owned a 40-acre tract of land adjacent to defendant, City of Emmetsburg, Iowa. Upon this were situated a dwelling house, barns, silos, etc. Plaintiff with his wife and family occupied said premises as a homestead and farmed the same, keeping thereon a considerable number of hogs, cattle, milk cows and chickens.
Prior to 1939, the sewage of the defendant city had passed through sewer pipes to a river several miles distant. This sewer ran through a tract of city owned land of about the area of a city block. At one time the city had there operated a septic tank, but this had been abandoned prior to the construction of plaintiff's house and some of the other buildings. For some years proir to 1939, the city had maintained on this land a box or catch basin of wood, 12 to 25 feet long, through which the sewage flowed into the main sewer. Frequent cleanouts of this box were required.
In 1939, the city constructed upon said tract, about 500 feet from plaintiff's dwelling house, a plant for the treatment and disposal of said sewage. It consisted of buildings, tanks, filters, etc., made of concrete, wood and other durable materials, and motors, pumps, machinery and equipment. The plant was planned by and constructed under the supervision of a competent sanitary engineer, who had designed a large number of sewage treatment plants. He testified the plant was of a modern, approved type in use in every state in the union, in 80% of the sewage treatment plants of cities in Iowa, and in various state institutions; that it met United States Government requirements and that in general plants of this type functioned properly and without objectionable odors. The plans for this plant had been submitted to and approved by the State Department of
[4 N.W.2d 438]
Health, prior to their adoption by the defendant city.
Evidence for plaintiff tended to show that beginning shortly after the plant started to operate in May, 1939, and continuing to the trial in November, 1940, foul, noxious and nauseous gases and odors from the plant spread over plaintiff's premises and into the rooms of the house, intermittently from once to several times per week, depending upon wind and weather conditions, lasting at times from half a day to one and one-half days, and causing substantial discomfort to plaintiff and members of his family.
Plaintiff's petition alleged said conditions constituted a continuing and permanent nuisance, which interfered with the use of the homestead and said premises, thus depreciating the value thereof. Recovery was sought for past, present and future damages as original damages. For a fuller exposition of the petition, see Ryan v. City of Emmetsburg, 228 Iowa 678, 293 N. W. 29.
Omitting portions stricken by the court, the answer in substance admitted plaintiff's occupance of his premises and the construction and operation of the sewage disposal plant, and denied the other allegations of the petition. Defendant's evidence showed the adoption and approval of the plan of the plant and its construction and operation under the supervision of a competent sanitary engineer, as heretofore noted. There was also evidence tending to contradict the evidence on behalf of plaintiff relative to the character, frequency and extent of the odors emanating from the plant. Defendant's engineer testified there might be some odor at the plant, but that no odor would be noticeable at a distance of 200 feet; that the gases which were not confined were burned and that none could escape into the atmosphere. An engineer with the State Department of Health, who made a number of extended inspections of the plant, several chemical tests for analyses of the different matters there, and two complete efficiency tests over 12-hour periods, testified it was working satisfactorily except for one or two temporary breakdowns, and that after the gases formed in the plant became combustible and were burned (September, 1939) there would be no disagreeable odors more than 100 feet from the plant.
The jury returned a verdict of $4,000 against defendant, judgment was rendered thereon, and defendant's motion for new trial and exceptions to instructions were overruled. From this order defendant has appealed.
Chapter 528, Code of Iowa 1939, forbids the maintaining of nuisances and provides that a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof. Noxious exhalations, offensive smells, etc., which become injurious and dangerous to the health, comfort or property of individuals or the public are among the nuisances therein listed and, we may say, are generally so considered.
Although these conditions may constitute a public nuisance the case at bar concerns a private nuisance. Smith v. Jefferson, 161 Iowa 245, 142 N.W. 220, 45 L.R.A.,N.S., 792, Ann.Cas.1916A, 97. The term “private nuisance” refers to the (private) interests invaded. Since we conclude there was substantial evidence to support the jury's finding that as related to the use and enjoyment of plaintiff's property, the condition constituted an actionable nuisance, that question will be considered as settled for the purposes of this discussion. However, it was not a nuisance per se but a nuisance in fact or per accidens. See 30 A.J. 290.
Strictly speaking, an action for special damages from a private nuisance is restricted to invasions in interests in the use and enjoyment of land with incidental damages to the possessor in some cases. Actions by others than landowners for bodily injury are not in this class. Nor are attractive nuisance cases. Nor is an action for damages for bodily injury caused by a public nuisance, such as an obstruction to a highway. Such an action has been called a private action for a public nuisance.
As distinguished from trespass, which is an actionable invasion of interests in the exclusive possession of land, a private nuisance is an actionable invasion of interests in the use and enjoyment of land. Trespass comprehends an actual physical invasion by tangible matter. An invasion, which constitutes a nuisance is usually by intangible substances, such as noises or odors. It usually involves the idea of continuance or recurrence over a considerable period of time.
The line of demarcation between private nuisance and trespass is not always
[4 N.W.2d 439]
clear. Under certain circumstances such as in some cases involving the flooding of land there may be both a trespass and a nuisance. In some instances trespasses of continuing character have been dealt with as nuisances. However, the invasion in the case at bar was clearly non-trespassory and was in the pure nuisance class.
I. Appellant predicates error upon that part of Instruction 6 which charged, in substance, that the fact, if it be a fact, that in constructing and operating the plant appellant employed the most approved and skilled methods and exercised due care and caution to prevent damage to others, would not relieve it from liability, if the plant in fact constituted a nuisance which caused damage to another. In the same assignment of error appellant complains of an order of the trial court, which struck from its answer the pleaded defense that the plant was constructed and operated under the supervision of competent engineers, and in accordance with the adopted plan which had been first approved by the State Board of Health and which followed generally approved modern sanitary engineering methods and practices.
Reliance is placed upon such cases as Dodds v. Town of West Liberty, 225 Iowa 506, 281 N.W. 476;Cole v. City of Des Moines, 212 Iowa 1270, 232...
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